In Texas, we have gender neutral laws. And so, while people think that the mother has an advantage, it’s not generally an advantage based on gender. It’s an advantage based on who has been the primary caretaker for the child in the past. So, the judge is really going to look hard at who’s the one that puts the child to bed at night, makes sure that the child has their medicine, who makes sure that the doctor knows what’s going on with the child’s medical history, makes sure that the homework gets done.
That’s the parent who would be the primary parent for a custody situation.
Of course, that isn’t always easy to prove. Often both parents have been actively involved in caring for the child’s daily needs.
When it comes to quality time with the children, we let the client be the guide to tell us what it is that they think they need for their child. And oftentimes we can make suggestions, but we must be sensitive to such things as your child’s unique needs, your other obligations, your personality, and what you feel is in the best interest of your child. When both parents want full custody, you really must talk it out in mediation and try to look at what is in the best interest of the child, not what the parent wants and needs, but what does the child want and need? That is not to say that the child gets to make the final decision on custody. You should never make your child choose. You need to objectively decide what is best for the child.
And then you look at whether it’s practical in the situation, as far as the amount of distance that the parents live from each other, sometimes the parents will say we want full custody, but then they have a very unstable job situation or plan to live many miles away. And it’s just not practical for sharing custody.
We presume in Texas that every family should have a joint managing conservator, but joint managing conservatorship can look very different in some families than others. And what we really look at are the rights and the duties of the parent. Are we going to share the rights and the duties to make decisions regarding education and medical decisions? Or are we going to have one person with the exclusive right or one person who makes the decision, but must consult with the other parent first? And so, we may have a sole managing conservatorship if there’s abuse or if we need supervised visitation, but most cases are going to end up with a joint managing conservatorship. And the only question is what does that look like for you?
Let’s talk about terminology for a minute. People often tell me that they want sole custody. Texas law presumes that everyone should have “joint managing conservatorship” unless there is evidence and good cause to make it a “sole managing conservatorship” (custody) and the other parent has a “possessory conservatorship,” which is visitation rights. In order to get a sole managing conservatorship, the judge must affirmatively state why he didn’t award joint managing. But in joint managing conservatorships, there is still usually one parent who has the exclusive right to determine where the child lives, and that parent is the one we commonly refer to as having “custody.”
When the judge does not want to give one parent any more power than the other, sometimes, the judge may order that the child stay in a certain school district regardless of where each parent lives, so if a parent needs to move away later due to a job or remarriage, that parent will in essence lose custody because they can’t take the child out of that school district. Many times the judge is trying to keep the child’s life as stable as possible and will order that whomever has primary custody also is awarded the marital home, and may order that the child not be moved from that residence.
The father’s hurdle is to prove to the judge that he isn’t just trying to avoid paying child support. Sometimes, but not always, the father may have to take on more of the financial burden in order to gain custody. The question is whether the money or the custody is your top priority. I’ve had cases where the mother was ordered to pay child support to the father, cases where neither parent paid support to the other, and cases where the father agreed to pay a form of alimony or gave up more of the community assets just so that the mother would agree to let him have custody.
In most situations, the parent who has custody is going to be the one who receives child support. That’s the traditional way. But we have had cases where the parent who has custody is also the highest income earner. And there have been situations where they’ve said, “I don’t need child support from the other side”, or the parent who does not have custody is unemployed, and really can’t afford to pay child support at that time. And so, we have to look at the whole situation and there are times when we will offset child support, look at how much each parent makes. And if one parent was to pay child support to the other, then look at what the difference would be. Then, the one who would be paying the most child support just pays the difference to the other parent.
So, there’s a lot of different scenarios.
Different states do it differently. In Texas, we have guideline child support, but you don’t have to follow the guidelines. We can sometimes overcome the presumption of guideline support. If we have the right facts, child support is not meant to be punishment, but many times parents use it that way. If they don’t have a good relationship, they really need to focus on the needs of the child. If the child needs more than just the standard child support, then they need to be flexible in that situation.
On the other hand, if the child doesn’t need all the money that the child support would give them, you might set up a 529 plan, trust fund, or college savings plan to save up for the child’s college. Child support ends when they turn 18 and have graduated from high school, but most parents want their children to go to college. Many custodial parents, particularly of older teens, are disappointed to learn that in a contested case, the Judge cannot order the other party to pay child support for the purpose of sending a legally adult child to college. So, if you don’t need that money right now for food, clothing, and shelter, it’s a good idea to put that money aside for college. Because the financial aid applications still consider both parents’ income in determining eligibility for student aid, even though you cannot force that parent to contribute. The only way we can try to get college expenses covered is in a mediated settlement agreement, and then it is enforceable as a contract.
When it comes to changing your child custody orders, oftentimes you don’t have to get a new order. If you can reach an agreement on where the child will live or when a non-custodial parent will spend time with the child, the courts want you to be flexible and be able to reach an agreement between the parties without having to run and get a new court order every time you’re changing the visitation plan. But if you are making a permanent change or a major move such as taking the child to live outside the United States, it is best to get a modification order so that the other side cannot change their mind. A modification order doesn’t have to be expensive if both sides will agree and sign a written order as approved.
However, when it comes to the money issues, you need to have a new court order every time. You can’t just agree between the two of you that the child support’s going to be more or less than what the court order says. If you want to have a lower child support, you must go get a new court order. Or the attorney general may file a lawsuit to put the person who’s supposed to be paying child support in jail because they didn’t pay enough because your child’s support order is not being followed. The child support collection division of the attorney general’s office could have you put in jail, revoke your driver’s license or professional license, and/or take your tax refund, as well as take the money out of your paycheck, if you don’t get the order changed to reflect your agreement.
It’s a good idea to consult with your attorney before agreeing to any Order. Make sure, first, that the order is written in such a way that it can be enforced, make sure that it says what you think it says, then get an attorney who can show you what all your different options are for enforcement if the other side doesn’t do their part.
The bottom line is that either parent can be the parent with primary custody, or they can have shared custody, and either parent or both can be ordered to pay child support. The question is not whether the parent is a mother or a father, but, instead, who is historically the one who meets the child’s daily needs, and what does the child need? If a child has two good parents who just can’t get along, the decision is not an easy one. A good attorney can help you present the evidence you need in order to persuade the judge that you are the right choice. Laura D. Heard has been helping fathers get custody of their children since 1987 in Texas.